Evidence of meeting #26 for Justice and Human Rights in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was privacy.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Gregory Gilhooly  As an Individual
Michael Spratt  Member and Criminal Defence Counsel, Criminal Lawyers' Association
Gaylene Schellenberg  Staff Lawyer, Law Reform, Canadian Bar Association
Marian K. Brown  Executive Member, Criminal Justice Section, Canadian Bar Association
David Butt  Counsel, Kids' Internet Safety Alliance - KINSA

11:55 a.m.

Counsel, Kids' Internet Safety Alliance - KINSA

11:55 a.m.

Conservative

Bob Dechert Conservative Mississauga—Erindale, ON

Thank you very much.

I think you both have taken us through the recklessness standard and some of the other key provisions of this bill, and you both mentioned that there's a tension here. Clearly what we're all struggling with is that we need to draw a line between protection of privacy and prevention of harm.

Mr. Gilhooly, you said in your opening comments that if we make a mistake, we can always go back and correct it. What harm is there if the ISP provides the name and address of someone who may be sending an image or sending a message that the party on the other side thinks is bullying but that may turn out, when looked at judicially, not to be? What is the harm to the person whose information is being disclosed versus the need to act quickly to prevent the harm, if in fact it is a case of criminal liability? Can you speak to that, Mr. Gilhooly, as a victim and as a lawyer?

I'd like to hear from Mr. Butt as well.

11:55 a.m.

As an Individual

Gregory Gilhooly

There is almost a difference between policing and prosecution, when you get down to thinking about it. We have some very technical arguments here about how to ensure the legislation complies so that we can end up with charter-proof prosecutions of criminals.

I'm, firstly, worried about keeping our children and citizens alive, when it comes to the issues of cyberbullying. So I want to ensure that the police have the tools to intervene and do whatever they can to stop the crime. If it turns out that our laws have gone too far in accordance with what the charter sets out, I'm more than happy to have a perpetrator walk but to have a child alive. I know that's a somewhat trite thing to say, but as victims, we want to see laws that protect society. We, as victims, don't want to see rights trampled, but the tie has to go to the victim here. Unless the statute is egregious in its trampling of privacy rights, my hope is that we're going to err on the side of giving the police the appropriate tools to intervene.

11:55 a.m.

Conservative

Bob Dechert Conservative Mississauga—Erindale, ON

Do you see any egregious trampling of privacy rights in this bill?

11:55 a.m.

As an Individual

11:55 a.m.

Conservative

Bob Dechert Conservative Mississauga—Erindale, ON

Mr. Butt, do you have a view?

11:55 a.m.

Counsel, Kids' Internet Safety Alliance - KINSA

David Butt

In terms of “what's the harm?”, I wrote about this in The Globe and Mail a couple of weeks ago. It's a short example that makes the point.

KINSA works directly with police officers to devise training on Internet child exploitation investigations that we can deliver in developing countries. We have a lot of experience working closely with police officers. So I asked one of our instructors what the difference was. “Why shouldn't they have to get a judicial order for everything? Why can't they just request basic names and subscriber information?” He gave me a great example, which I stole and put in the paper. It's this.

Sally is bullied. She opens her email, and there's a horrific bullying message from some anonymous person, just known as “Bully Dude”. I asked the police officer this. The family is upset, and they want immediate action. If you could call and get just the basic subscriber information, how long would it take before you could start working on a warrant to actually investigate? He said it would take minutes. I asked him how long it would take to do judicial production orders just to get the basic subscriber information. He said they'd have to draft it and get it judicially approved. It would go into the busy Internet service provider's inbox with a ton of others. It could sit there for 30 to 60 days. That is just for the basic subscriber information.

I say let's give that information. It's just a bit of information that allows the police to say, “Here is the person against whom we want to do a full warrant.” That's all it does. And they proceed from there. It's minutes versus 60 days. That's an appropriate trade-off, in my view.

11:55 a.m.

Conservative

Bob Dechert Conservative Mississauga—Erindale, ON

Ms. Brown, do you have a view on where you draw the line between protection of privacy and prevention of harm, and what is the potential harm of disclosure of the information to the police if they're trying to prevent harm, as Mr. Butt just mentioned ?

11:55 a.m.

Executive Member, Criminal Justice Section, Canadian Bar Association

Marian K. Brown

Subscriber information?

Noon

Conservative

Bob Dechert Conservative Mississauga—Erindale, ON

Correct.

Noon

Executive Member, Criminal Justice Section, Canadian Bar Association

Marian K. Brown

Well that issue is squarely before the Supreme Court of Canada in the Spencer case. So I'm waiting to hear what they say. It's been very well argued both ways that subscriber information is either like name and address information, or that it's the crucial link that enables determination of core biographical information, charter protected information—

Noon

Conservative

Bob Dechert Conservative Mississauga—Erindale, ON

Let's say that wider amount of information was disclosed to the police in error. What's the harm to that individual?

Noon

Executive Member, Criminal Justice Section, Canadian Bar Association

Marian K. Brown

Disclosed to the police in error, unlawfully?

Noon

Conservative

Bob Dechert Conservative Mississauga—Erindale, ON

Unlawfully, the courts have determined too much information was disclosed, what is the harm to the subscriber in that case? Can you give us information on that?

Noon

Executive Member, Criminal Justice Section, Canadian Bar Association

Marian K. Brown

Yes, infringement of a charter protected privacy interest is a harm. Privacy is something that we value in our justice system and to infringe someone's privacy in those circumstances weakens the protection of everyone's privacy in general.

Noon

Conservative

Bob Dechert Conservative Mississauga—Erindale, ON

How do you balance that against the need to move quickly to protect a young victim in a case like for example with Rehtaeh Parsons or Amanda Todd?

Noon

Executive Member, Criminal Justice Section, Canadian Bar Association

Marian K. Brown

If you're asking about non-judicially authorized disclosure, that is currently made under the provisions of PIPEDA or the privacy acts and there's a great debate whether those provisions are tight enough. That goes beyond what we can deal with in Bill C-13

Noon

Conservative

Bob Dechert Conservative Mississauga—Erindale, ON

Does anything in Bill C-13 change PIPEDA?

Noon

Executive Member, Criminal Justice Section, Canadian Bar Association

Noon

Conservative

The Chair Conservative Mike Wallace

Thank you very much.

Next from the Liberal Party is Mr. MacAulay. Thank you for joining us today.

May 27th, 2014 / noon

Liberal

Lawrence MacAulay Liberal Cardigan, PE

Thank you, Mr. Chair, and welcome to the witnesses. Your presentations were excellent.

I have a question for Mr. Spratt.

On May 1, this committee heard my colleague from the Liberal Party question the Minister of Justice on the proposed subsection 487.0195(2). The minister said this section is basically a re-enactment of the existing section, which has been renumbered primarily to accommodate the new preservation of production orders that are found in this bill.

He also said its purpose is also to spell out more clearly that a person assisting police would be able to benefit from the protection that's offered by the Criminal Code. So for those who voluntarily provide this type of information to assist law enforcement, this is a re-enactment of that existing section. So it is there for emphasis.

When my colleague asked the minister if he agrees that Bill C-13 codifies an immunity for telephone companies from class action lawsuits when they cooperate with warrants, with lawful demands for documents, the minister responded by saying that if it is deemed lawful, then they should be immune from prosecution and that this bill would not create any new protection from any criminal or civil liability for anyone who would voluntarily assist law enforcement. It simply clarifies existing provisions and protections.

Finally, when my colleague asked the minister about the circumstances where you have a warrantless but lawful request made by law enforcement to a telephone company, whether he agreed that in those circumstances the telephone companies had no obligation to disclose to their subscribers that they have given this information to authorities without a warrant lawfully, the minister said that really is an issue that is covered under the PIPEDA.

It is really, as well, potentially an issue of contract law between the individual and the service provider, the company. But the provision provides protection for those who are voluntarily assisting police in an investigation, where such assistance is not otherwise prohibited by law. It must be done in a way that complies with section 25 and this other section, 487.

Mr. Spratt, can you comment on the responses by the minister and do you agree with what the minister had to say?

Noon

Member and Criminal Defence Counsel, Criminal Lawyers' Association

Michael Spratt

I don't agree. I think a reading of the legislation would logically lead one to that conclusion.

The minister said that the obligation to disclose to an individual when their information has been disclosed was covered under PIPEDA. It's not. It's quite clear, when you look at PIPEDA, that subparagraph 7(1)(c)(ii) doesn't require that there be any disclosure to the individual.

When the minister says that it must comply with section 25, that's simply not accurate when you look at the text of section 25, which requires that the person disclosing “acts on reasonable grounds”. And reasonable grounds isn't just asking for the information—“I need this information for an investigation”—and then having the telco comply and give it to you. That's not reasonable grounds. If reasonable grounds is required for the protection of section 25, the case can be made to a judge.

It's not the case that this hamstrings investigations. In my experience, in the case of some of the tragic examples that this committee has heard, it's not the case that it would take 30 to 60 days to retrieve that information. That's simply not how it works.

The section that the minister was speaking of broadens the ability to ask for that information. Certainly combined with other bills, such as Bill S-4, it raises severe privacy concerns in terms of the broadening of that information. It's not consistent with section 25, which requires reasonable grounds.

In fact, the countless hundreds of thousands of example that we've heard about over the last month about this sort of voluntary disclosure is troubling, and this does nothing to address that. It does nothing to address notifications to persons affected.

What's the danger with people asking for this information? I'm sure you've all read the stories about record checks, police checks, state storage of information, disclosure of that information.That's the danger. It's not an answer to say that if you have nothing to hide, you should be willing to give this information over. What's the harm? The harm is done when the charter is breached. That's the standard. The tie doesn't go to the victim. The tie should go to the charter, which is the supreme law and should be respected.

Privacy is not about hiding. It's not about secrecy. Privacy is about a person's right and ability to control the information about them and their freedom of choice. Just as I have a privacy interest in my voice when it goes through the telephone lines at the telecommunications companies, I also should have, and citizens should have, privacy interests in other data. It's a misnomer to say that the legislation makes it clear that this just subscriber data, i.e., name. That's not what it says. It's the type, duration, date, time, size, origin, destination, and termination of your data and anyone else's data.

When that net is cast, I say there's not even close to a tie here. The police aren't hamstrung. They can take the appropriate steps and we can be protected. Police can do their job, and at the same time, we can respect not only individuals' privacies but also comply with the strict standards that we're entitled to under the charter.

12:05 p.m.

Conservative

The Chair Conservative Mike Wallace

You have one minute left.

12:05 p.m.

Liberal

Lawrence MacAulay Liberal Cardigan, PE

Thank you very much.

The minister and department basically refused to talked about the combined effect of Bill S-4 before the Senate and the bill before the Senate committee. Should Canadians be concerned about this issue?

12:05 p.m.

Member and Criminal Defence Counsel, Criminal Lawyers' Association

Michael Spratt

Yes. What we're looking at under PIPEDA is that with regard to the information disclosed for the purposes of law enforcement, there's no necessity to disclose to the person who you're talking about, who the information pertains to. Bill S-4 takes it a step further, of course, and says it's not just law enforcement or the government, but it's other organizations as well. We see in Bill C-31 that no longer are there strict controls over the sharing of information between Revenue Canada and other organizations.

This is a pattern, and it's a concerning pattern. To that extent, if would be very useful if this issue could be studied in depth in relation to the other issues that impact it as well.